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Adiraju Mallikarjana Rao Vs. Somavaram Co-operative Society No. H-774, Represented by Prisident Somavarapu Chandramouleswara Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported inAIR1938Mad69; 175Ind.Cas.913; (1937)2MLJ858
AppellantAdiraju Mallikarjana Rao
RespondentSomavaram Co-operative Society No. H-774, Represented by Prisident Somavarapu Chandramouleswara Rao
Cases ReferredLatchmanan Chettiar v. Commissioner of Corporation of Madras
Excerpt:
- - he took his chance, of success before that tribunal and it was not until he had failed and until the adverse decree had been executed that he elected to move this court for a writ......an application for a writ of certiorari directed to the somavaram co-operative societies and the deputy registrar of co-operative societies. i am invited to quash the award of the deputy registrar to whom a dispute between petitioner (ex-president of the society) and the cooperative society had been referred on the ground that the deputy registrar has no jurisdiction under section 51 of the cooperative societies act to decide such a dispute.2. the facts are briefly as follows:--the petitioner as president of the society had made loans to four persons, which were irrecoverable. petitioner ceased to be president on 17th july, 1931. over two years later (namely, on 25th november, 1933), the co-operative society resolved to refer the matter to the arbitration of the registrar and claim no......
Judgment:
ORDER

Newsam, J.

1. This is an application for a writ of certiorari directed to the Somavaram Co-operative Societies and the Deputy Registrar of Co-operative Societies. I am invited to quash the award of the Deputy Registrar to whom a dispute between petitioner (ex-president of the Society) and the Cooperative Society had been referred on the ground that the Deputy Registrar has no jurisdiction under Section 51 of the Cooperative Societies Act to decide such a dispute.

2. The facts are briefly as follows:--The petitioner as president of the Society had made loans to four persons, which were irrecoverable. Petitioner ceased to be President on 17th July, 1931. Over two years later (namely, on 25th November, 1933), the Co-operative Society resolved to refer the matter to the arbitration of the Registrar and claim No. 2 of 1934 was filed very early in 1934 against petitioner. For a year this claim was pending before the Deputy Registrar, being eventually decided only on 13th March, 1935, in a long judgment which dealt with the merits fully, from which it does not appear that any objection was ever taken by petitioner to the jurisdiction of the Deputy Registrar under Section 51. It is on the other hand clear that petitioner resisted the claim and fought it on the merits. After the claim had been decided in March, 1935, there was more than a year's delay on petitioner's part in applying to this Court for a writ of certiorari. An ill-advised revision petition was filed in September, and dismissed in November. During this interval of a year petitioner's property was sold in execution of the Deputy Registrar's decree, the sale was confirmed and the property delivered to the auction purchasers. The present petition was filed only on 5th May, 1936.

3. Now it has been held in Narayana Aiyar v. The Co-operative Urban Bank, Ltd., Tinnevelly : AIR1936Mad81 that a Registrar has no jurisdiction under Section 51 of the Act to decide a dispute between a Co-operative Society and an ex-officer. This decision, if I may say so with respect, seems to me, to be correct and I therefore propose to deal with this petition on the assumption that the Deputy Registrar had in fact no jurisdiction to pass a decree.

4. It still remains to consider whether I should interfere to quash his proceedings. The facts set out above show that petitioner has not only submitted to jurisdiction, apparently without any protest but has by his subsequent conduct acquiesced in the decision for a considerable period of time. There is no foundation for his present statement that he challenged the Deputy Registrar's jurisdiction beyond the fact that a statement to the effect occurs in his affidavit filed in support of this petition, and I do not think it would be proper to accept that as a proved fact merely because the respondents in their counter-affidavits omitted to challenge the statement.

5. Petitioner argues that being a person aggrieved by the unwarranted usurpation of jurisdiction he is entitled to ex debito justitiae--as a matter of right--to a writ, and he relies for this proposition in Rex v. Richmond Confirming Authority: Hoivitt, Ex parte (1921) 1 K.B. 248 where a distinction is drawn between writs applied for by persons interested and writs demanded by persons aggrieved. But in that case the effect of gross delay as in this case, by a person aggrieved in applying for a writ was not decided. The learned Lord Chief Justice concluded the judgment in that case in these words:

On the facts there is nothing sufficiently shewn to raise the point of law argued by Sir John Simon (namely, the effect of delay when the writ goes ex debito justitiae) and it is not desirable to give a decision in express terms where the point does not really arise.

6. But in the present case the conduct of petitioner is such as to leave no room for any doubt that for over two years after the case had been referred under Section 51 to the Deputy Registrar it never even occurred to him that this officer had no jurisdiction. He took his chance, of success before that tribunal and it was not until he had failed and until the adverse decree had been executed that he elected to move this Court for a writ. My attention has been drawn to the case reported in Latchmanan Chettiar v. Commissioner of Corporation of Madras : (1926)51MLJ742 . It was there pointed out by a Bench of three judges that prima facie the English decisions establish the proposition that in such circumstances the applicant cannot obtain a writ of certiorari ex debito justitiae, but that the Court exercises a purely discretionary power. The test,' it was said, is whether the applicant armed with a point either of law or of fact, which would oust the jurisdiction of the lower Court, has elected to argue, the case on its merits before that Court. Judged by that test 1 have no hesitation in finding that the petitioner has so conducted himself as to preclude this Court from exercising its discretionary power in his favour. The petition is therefore dismissed with costs. (Two sets Advocates fees 35 each.)


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